OUI Charges and the Defenses an Attorney Can Raise

OUI defense issues are complicated

From my office in Portland, I see a lot of OUI or Operating Under the Influence cases. Many folks think that it’s not worth hiring an OUI Defense Attorney since these cases are easy to prove, but that’s not always true. There are a lot of potential problems with any case and a person never knows what defenses are possible until an experienced OUI lawyer reviews the evidence. Every case has some defense. This article will cover some of the legal issues that a defense attorney can raise. Click the following link for information on the elements of  OUI in Maine and the possible sentences. You can click this link to review all of my articles about OUI Defense. This post covers the following topics and you can click a link to jump to that section:

  1. The Traffic Stop
  2. OUI Roadblocks
  3. Roadside Detention
  4. Field Sobriety Testing
  5. Arrest Decision
  6. Miranda Warnings
  7. Breath Alcohol Testing
  8. Operating Under the Influence of Drugs
  9. The Criminal Defense Attorney’s Role


There must be a legitimate reason to stop a car, police can’t just act on a hunch that the driver is Operating Under the Influence. They must have a reasonable belief that the driver is breaking the law. If the traffic stop is improper, all evidence obtained from that stop should be kept out of the Operating Under the Influence trial.

OUI Roadblocks

Ordinarily, there must be a reason for a traffic stop, but that’s not true if the police stop the car at an OUI roadblock. At these roadblocks, sometimes called sobriety checkpoints, police stop drivers who have done nothing wrong in order to check for impaired driving. Such stops are generally legitimate, but there are standards and some roadblocks violate the law. The courts have held that checkpoints can’t just be a dragnet to check for any and all criminal violations, their primary purpose must be to check for vehicle safety issues. Some roadblocks are an unreasonable intrusion on a person’s right to be free from unreasonable searches and seizures; stops at such roadblocks are illegal and any evidence obtained from them should be kept out of court. To determine if a roadblock is legal, the court will consider several factors including the location and the duration of the roadblock, the standards for what cars will be stopped, whether there was advance public notice of the roadblock, whether police policy and procedures were set and whether individual officers followed those policies. In some cases, the Maine Supreme Court has found roadblocks to be illegal.


If it’s not at a roadblock, the traffic stop is often based on a plate light or blinker or other minor infraction that has nothing to do with intoxication. The officer must have some reason to believe that you are operating under the influence of alcohol or drugs to further detain you for field sobriety tests. If an officer detains you to do these tests without a good reason, they have acted illegally and any evidence they gain from that point on should be kept out of trial.


In order to determine whether you are under the influence of drugs or alcohol, the officer will usually ask the driver to do some roadside tests. These will normally include the three nationally standardized tests:

  • Horizontal Gaze Nystagmus: A finger or other object moved in front of the face to check for involuntary eye jerking.
  • Walk and Turn: The subject walks out 9 steps heal to toe, turns and walks back all in a very specific way.
  • One Leg Stand: The subject balances on one leg while lifting the other foot and counting.

Never do these. They are voluntary, there is no penalty for refusing them and they just help the cop develop evidence against you. While there is a substantial dispute as the whether these tests are good measures of impairment or intoxication, they are widely used by police and and accepted by courts. To be at all legitimate, the officer must be properly trained in doing roadside sobriety tests and the tests should be administered in a very specific way. If tests are administered improperly or by an untrained officer, then any legitimacy they have is further undermined. A judge may exclude some or all of the field sobriety test evidence from the OUI trial.


The officer uses the information learned above in deciding to make an OUI arrest. That arrest must be based on probable cause to believe that a person is operating under the influence or committing some other crime. If there is not sufficient cause to support the arrest, a judge should exclude any evidence developed from the arrest. Since probable cause is based largely on the driver’s field sobriety tests, drivers who perform well on the tests or refuse them, have a strong argument here.


The police might ask the driver questions so that the defendant’s own statements can be used against them at trial. If an individual is “in custody” at the time the questions are asked, then the law requires that the police first inform the driver of their so called “Miranda Rights” (to remain silent etc…). If the office does not do this, the answers to those questions should be keep out of court.


After arrest, people are required to submit to an alcohol breath test. Most tests in Maine are done using 10 or 20 year old machines called the Intoxilyzer 5000. Some of these devices are simply worn out and have reached the end of their useful life. The Cumberland County Jail Intoxilyzer in Portland was found to be malfunctioning for months before it was taken out of service. The State needs to show that the testing device was properly approved by State agencies, properly maintained and calibrated and that it was operating correctly. If the machine used in a case was not properly calibrated, maintained or functioning, a judge should exclude the test result from trial. You can review this article for more information about how the intoxilyzer works and what the results mean.


An officer administering the breath test must be trained and certified and the testing must be done according to proper procedure. This requires a 15 minute observation period before the test. The subject must have any foreign objects removed from the mouth and be observed continuously. The officer must make sure they do not burp, vomit, drink or eat anything as this might contaminate the breath test. Other chemicals in the room, radio and other interference can also cause errors. The Judge should prevent an improper breath test from being admitted at trial.


If the test is 100% accurate, it still only says what the alcohol concentration was at the time of the test. In some cases, one or two hours or more might pass between the time of operation and the time of testing, so how much does the test result really tell the court about whether the driver was under the influence at the at the time they operated the car? A person might be below the limit when they drive, get pulled over and arrested on suspicion of OUI, as they for the test they absorb alcohol and give a breath test that is over the limit.


A driver who has no alcohol in their system can be charged with Operating Under the Influence if the prosecutor believes that they were impaired by drugs. .08 is the limit for alcohol but there are no legally defined drug concentration limits in Maine. When drug intoxication is suspected, police will have a trained and certified drug recognition expert (DRE) do a special evaluation. The scientific and legal communities have questioned the validity of these evaluations. The police will usually do a urine test but this test will only show the presence, not the level, of drugs. The test does not show how much of the drug is in your system or whether the amount is intoxicating or therapeutic. These DRE cases are much harder for the prosecution to prove.


A lawyer who is trained and experienced in defending OUI cases will know how to investigate your case and bring important issues to the Court’s attention. Many times, the most important defenses do not dispute the facts of the case at all, instead, they take advantage of the rules of evidence, Maine law and constitutional protections that prevent certain evidence from ever getting before a jury. These laws and rules exist to protect people from having questionable evidence used against them and to prevent wrongful convictions.

Pleading guilty at your initial appearance guarantees your conviction. Discussing your case with an attorney might reveal defenses or weaknesses in the State’s case. A lawyer can also talk with the prosecutor to negotiate a more favorable resolution even when no strong defense is available. If you intend to plead guilty, a lawyer can still review the evidence to make sure that there are no major issues and to confirm that you are making the right decision. If you want to discuss any of these or other issues, you should consult with an experienced OUI defense attorney. This article only covers a few of the many issues that might help your case.

OUI Charges and the Defenses an Attorney Can Raise by
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